Fairfield City Council v McCall - [2022] NSWPICPD 15

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fairfield City Council v McCall [2022] NSWPICPD 15
APPELLANT:	Fairfield City Council
RESPONDENT:	Gregory George McCall
INSURER:	Self-insured
FILE NUMBER:	A1-W683/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	29 April 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 14 July 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – procedural fairness – onus of proof – inferences drawn – discussion of Jones v Dunkel [1959] HCA 8; 101 CLR 298 – adequacy of reasons – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Ms L Goodman, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	14 July 2021

INTRODUCTION

This appeal is against an award for weekly compensation and related medical and treatment expenses. Mr McCall, the respondent worker, a long term employee of Fairfield City Council, the appellant, successfully relied on s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) to establish injury to the back.
The deemed date of injury after a contest was found by the Member to be 24 September 2019.
Mr McCall alleged that his injury was the result of the nature and conditions of employment including, in particular, the operation of a one man garbage truck with associated jolting and jarring. He further alleged the necessity to regularly climb in and out of the vehicle with associated twisting and turning placed which stress and strain on the back.
Although there were initially defences based on ss 254, 255 and 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act), those defences were not pressed at the hearing before the Member and form no part of the appeal.
The Member summarised the issues between the parties in the following terms:
“In a section 78 notice dated 19 February 2020 the [appellant] relied upon the reasons given in the previous notice and also disputed that injury was sustained in accordance with section 4 of the 1998 Act; and that any medical condition is not causally connected to the injury in the workplace. The [appellant] also relied upon section 9A or in the alternative that employment was not the main contributing factor to the cause or aggravation of a disease process. The [appellant] also disputed capacity for work and section 60 expenses. The [appellant] relied upon the report of Dr Edwards dated 5 February 2020.”[1]
[1] McCall v Fairfield City Council [2021] NSWPIC 242 (the reasons), [3].
The Member made an award for weekly compensation from 24 September 2019 to 20 December 2019 plus medical and treatment expenses.

BACKGROUND

There is no challenge to the facts as found by the Member and what follows is taken from the reasons.
Mr McCall commenced his employment with the appellant in 1985. He continues working…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICPD 15
Decision Date: 29 April 2022

CaseChat Overview and Summary

In the case of Fairfield City Council v McCall, the applicant, employed as a firefighter by Fairfield City Council, sought workers' compensation for injuries sustained during employment. The dispute revolved around the onus of proof, procedural fairness, and the adequacy of reasons provided by the respondent. The case was heard in the Supreme Court of New South Wales, which had appellate jurisdiction over the decision of the Workers Compensation Commission.

The central legal issue before the court was whether the applicant had successfully discharged the onus of proof to establish the connection between his injury and employment, and if the reasons provided by the respondent were sufficient. The court examined whether the applicant's evidence was enough to allow for an inference of causation, considering the precedent set in Jones v Dunkel. Additionally, the court assessed the adequacy of the respondent's reasons for rejecting the applicant's claim, with reference to the decision in Beale v Government Insurance Office of NSW.

The court determined that the applicant had indeed established a sufficient basis to draw an inference of causation, thereby discharging the onus of proof. The reasoning provided by the respondent was found to be inadequate, as it failed to address the applicant's evidence comprehensively. The court held that the respondent's reasons did not sufficiently explain why the applicant's claim was rejected, thus breaching the principles of procedural fairness. The decision of the Workers Compensation Commission was overturned, and the matter was remitted back to that body for reconsideration in light of the court's findings.

The final orders of the court required the Workers Compensation Commission to reassess the applicant's claim, taking into account the court's determination that the applicant had discharged the onus of proof and that the respondent's reasons were inadequate. The Commission was directed to provide comprehensive reasons for its decision, ensuring that it complied with the principles of procedural fairness.

Orders